Huerta v. Nelson, 222 Ariz. 44, 213 P.3d 193 (App., Div. I, June 16, 2009) (J. Johnsen)
NO RIGHT TO CHANGE OF JUDGE AFTER CONSOLIDATION WITH ANOTHER CASE WHERE PARTY ON “SAME SIDE” HAS ALREADY EXCERCISED THIS RIGHT
Plaintiff as an heir to the estate brought a probate action and after institution of the suit filed a notice of change of judge pursuant to Rule 42(f)(1) of the Arizona Rules of Civil Procedure. Thereafter the same plaintiff filed a separate action against Real Parties in Interest alleging they were wasting assets. This suit was then consolidated with the probate action over plaintiff's objection. Plaintiff then in the consolidated case sought again to notice the judge which was denied.
The Court of Appeals sustained the trial court's ruling finding that rule 42 provides “each side is entitled as a matter of right to a change of one judge . . . each action, wh3ether single or consolidated, shall be treated as having only two sides.” Unless the parties on the same side are “adverse or hostile” only one change of judge is allowed even after consolidation by the express terms of the rule. Thus, here where plaintiff attempted two changes of judge the rule clearly prohibited it. Even if a separate plaintiff made the request after consolidation, barring a showing of an interest adverse to the first plaintiff to notice the judge, the same result would follow.